Litigation: The Supreme Court affirms the First Amendment right to tell lies

George Washington’s famous quote, “I cannot tell a lie,” has been debunked by historians as an apocryphal story about the value of truth-telling that (ironically) was likely made up by a biographer shortly after the late president’s death. Whether or not President Washington’s parable has any basis in fact, on June 28 the Supreme Court took aim at the moral of the story. In United States v. Alvarez, the court held that, even if Washington never wanted to tell a lie, under the First Amendment, he (and all the rest of us) certainly had the right to do so. Even one about chopping down a cherry tree.

In Alvarez, the court considered the constitutionality of the Stolen Valor Act, which made it a crime to falsely claim to have won military honors. Violators faced fines, imprisonment or both—and that went double when the Congressional Medal of Honor was involved. Xavier Alvarez, a man whom the court said made “lying…his habit,” put the statute to the test when he falsely said, during at a public meeting, that “Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.”

In response to arguments that the statute violated the First Amendment, the government cited a raft of Supreme Court cases saying that falsehoods are not entitled to free speech protections. It also argued that if the government could regulate perjury, lying to government officials and impersonating police officers, as courts had always assumed it could, then there was no reason it could not also make a law prohibiting people from impersonating war heroes.

The court rejected the government’s arguments in full. It held that, unlike true threats, fighting words, incitement, actionable defamation, child pornography, fraud, speech integral to criminal conduct and obscenity, there is no general exception excluding false statements from the First Amendment. The court explained that its previous holdings about falsehoods being less deserving of protection were issued in the context of limiting what speech may be punished as defamation, and were not an invitation to expand liability in a different, far greater realm of discourse and expression. Likewise, it said that the other restrictions on certain kinds of speech cited by the government do not punish the statements merely because they were false, but because their falsity is related to some other legally cognizable harm, which the court found the government did not prove existed for stolen valor.

The decision in Alvarez counsels that, in the defamation context, mere falsehoods cannot be punished, consistent with the constitution, unless the plaintiff can prove that the statement was also defamatory. In so ruling, the court appeared to recognize yet another constitutional impediment for plaintiffs attempting to bring successful defamation actions. Previously, in a line of cases beginning with the landmark New York Times Co. v. Sullivan and culminating in Philadelphia Newspapers v. Hepps, the court ruled that the First Amendment requires libel plaintiffs, in certain circumstances, to prove publisher fault and the truth of the statement at issue. Under these cases, the other elements of a libel claim, including that a statement’s content must be defamatory, were merely requirements under the common law. The Alvarez holding, however, gives defamation defendants the additional argument that the First Amendment, and not just the common law, also requires proof of defamatory meaning. It may also open the door for courts to find, as they have for the other constitutionalized defamation elements, that the burden of proving defamatory meaning is on the plaintiff, and even that the burden can only be met with clear and convincing proof.

The real George Washington—who played an instrumental role in establishing honorary badges of distinction for U.S. military service—was invoked by the dissent to question the court’s ruling. According to the dissent, in 1782, when he was leading the Continental Army, then-commander Washington issued a military order saying that anyone with the “insolence to assume” a badge that he had not actually earned would be “severely punished.” What the dissent failed to mention was that this order was issued nearly 10 years before the First Amendment was ratified in 1791 and thus well before Washington became the first president charged with upholding its protections for free speech.

Whether President Washington would have viewed his military order as conflicting with his presidential oath to uphold the constitution is a thesis better tested by historians. What matters for today is that, according to the Supreme Court, “some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation," and that is "expression the First Amendment seeks to guarantee." Such a statement of the law is certainly welcome news for both Xavier Alvarez and advocates of free speech.